CHRISTOPHER L. OSBORNE, Claimant Below, Petitioner
MECHEL BLUESTONE, INC., Employer Below, Respondent
Appeal No. 2049897) (Claim No. 2014003072)
West Virginia Code § 23-4-1(a), workers'
compensation benefits shall be paid to employees that have
received personal injuries in the course of and resulting
from their covered employment. The evidence introduced in
litigation showed that Mr. Osborne had significant
preexisting degenerative disc disease. The evidence also
showed that Mr. Osborne did not feel injured after the
accident and when he reported to the hospital, he stated that
the accident did not cause any of his pain. Because the
evidence of record supports a finding that the symptoms were
caused by the degenerative disc disease and not a work
injury, it was proper for the Office of Judges and Board of
Review to deny the claim.
Christopher L. Osborne, by J. Robert Weaver, his attorney,
argues that it is undisputed that an accident occurred on the
day in question and while Mr. Osborne might not have
immediately felt the injury, pain started within one day.
Mechel Blustone, Inc., by Timothy E. Huffman, its attorney,
argued that it was Mr. Osborne's degenerative disc
disease that was causing his symptoms. The argument was
bolstered by the fact that no one involved in the accident
reported being injured after the accident and the opinion of
Prasadarao Mukkamala, M.D., who opined that any injury that
would have arisen out of the accident would not have
continued to worsen over time.
review, we believe the facts and legal arguments are
adequately presented, the decisional process would not be
significantly aided by oral argument, and there is no
substantial question of law and or prejudicial error. For
these reasons, a memorandum decision is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Osborne, a drill operator for Mechel Bluestone, Inc., was
involved in a collision with another drill on July 19, 2013.
After the accident, both drill operators represented that
they were uninjured. Mr. Osborne did not seek medical
treatment until July 25, 2013, when he was seen at Bluefield
Regional Medical Center. Mr. Osborne was prescribed
medication, given an x-ray, and discharged. The x-ray
revealed an L5-S1 degenerative disc change with no acute bony
abnormalities. Mr. Osborne completed his report of injury
which was signed by S. Patel, M.D., who opined that he
suffered an occupationally related back injury. The following
day, Mechel Bluestone, Inc., filed a report of occupational
injury challenging that any injury occurred.
Osborne returned to Bluefield Regional Medical Center with
complaints of acute pain multiple times in August of 2013.
His differential diagnoses were osteoporosis, ruptured disc,
spinal injury, and vertebral fracture. He was advised to
follow-up with Abed Koja, M.D. In September of 2013, Mr.
Osborne underwent an MRI of the lumbar spine which revealed
mild degenerative disc disease at two levels and facet
arthropathy with effacement of nerves and nerve roots. After
reviewing the MRI, Dr. Koja diagnosed Mr. Osborne with lumbar
spondylosis with radiculopathy and recommended physical
therapy. Dr. Koja added the diagnosis of displacement of
lumbar intervertebral disc without myelopathy and
administered an epidural injection.
Osborne was deposed and testified that he operated a drill
that was adjacent to another drill. During his shift, the
other drill struck his drill. He testified that he was not
wearing a seatbelt, and the impact threw him over the left
arm rest. He further indicated that his head or body did not
strike anything inside the cab. Immediately after the
collision, Mr. Osborne admitted that he did not experience
any pain or problems. He was interviewed by his supervisors
and was offered ambulance transportation, which he refused.
Mr. Osborne finished his shift that day. During the remainder
of his shift, Mr. Osborne denied experiencing any problems or
pain and did not seek immediate medical attention. Mr.
Osborne reported to work on July 20, 2013, and told his
foreman that his back was hurting. Mr. Osborne testified that
when he woke up on July 20, 2013, he noticed back pain. Mr.
Osborne worked the entire shift on July 20, 2013, and five
days thereafter when he testified that he was unable to
further deal with the pain. Mr. Osborne testified that the
pain intensified with each day until he sought medical
treatment. He stated that Dr. Koja started him on physical
therapy two to three times a week and administered
injections. Mr. Osborne represented that the injections only
intensified his pain.
Mukkamala issued a report indicating that he had reviewed Mr.
Osborne's medical records and concluded that he suffered
from degenerative spondyloarthropathy. Dr. Mukkamala
indicated that there was no reliable medical evidence
indicating that Mr. Osborne had sustained a work-related
injury on July 19, 2013. Dr. Mukkamala noted that Mr.
Osborne's testimony that he had no symptoms on the day of
the injury was significant. Mr. Osborne represented that as
time passed, his pain got worse. Dr. Mukkamala concluded that
this information was inconsistent with the type of injury. He
opined that a sprain/strain type of injury does not
progressively worsen. Dr. Mukkamala concluded that the
displacements of intervertebral disc identified in diagnostic
testing were degenerative in nature.
September 24, 2014, the Office of Judges concluded that Mr.
Osborne was not injured in the course and as a result of his
employment. The Office of Judges noted that there was no
question an industrial accident occurred on July 19, 2013;
however, it concluded that Mr. Osborne's symptoms were
due to underlying degenerative disc disease as opposed to an
acute injury. The Office of Judges found that the medical
evidence does not identify a broken bone or soft tissue
injury in the diagnostic testing, leaving only the
possibility of a sprain/strain type injury. The Office of
Judges concluded that a sprain/strain type of injury was
unlikely based on the etiology of the alleged injury and that
it was not diagnosed by either Drs. Koja or Mukkamala. The
Office of Judges found that the record contained ample
evidence of preexisting degenerative disease and opined that
it was more than likely the cause of his symptoms. The Board
of Review adopted the findings of the Office of Judges and
affirmed its Order. Because the evidence of record supports
the decision, we agree.
that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor
is it clearly the result of erroneous conclusions of law, nor
is it based upon a material misstatement or
mischaracterization of the evidentiary record. Therefore, the
decision of the Board of Review is affirmed.
CONCURRED Chief Justice Allen H. Loughry II Justice Robin J.
Davis Justice Margaret L. ...